The Ruth Bader Ginsburg taboo

Supreme Court Justice Ruth Bader Ginsburg is back on the bench after a hospital stay where doctors implanted a stent — another health scare for the octogenarian and two-time cancer survivor.

And while Ginsburg approaches her 82nd birthday, she has announced no plans to leave her post in the final weeks before Republicans take the Senate, a scenario even Ginsburg herself has predicted will leave Barack Obama unable to get an ideologically similar nominee confirmed.

Story Continued Below

But try to get Democrats to engage on whether Ginsburg should step aside and all you’ll hear are responses that sound like denial.

“Come on, I can’t play God,” said West Virginia Sen. Jay Rockefeller, a retiring Democrat freed from the political correctness of most of his colleagues. “I’m not getting into that in any way, shape or form. And not to avoid your question, but just to keep my conscience.”

But even some Republicans believe the next two years could bring a vacancy — and they’re more blunt about the reasons than Democrats.

“Given the health and age of some I think it has to be viewed as a possibility,” Sen. John McCain (R-Ariz.) warned.

But even as those Democrats avoid any criticisms of individual justices, they quietly fret over the potential of a court vacancy during the next two years, whether it be Ginsburg, one of the three justices that are in their late 70s — or anyone else on the court that is now narrowly controlled by conservatives.

“I always worry about that. That’s a big, big thing. A vacancy on the court? It’s a huge thing,” said Sen. Barbara Boxer, a California Democrat. “And the court is showing itself to be a very activist court and it’s very upsetting. Because we’re seeing decisions that are not good for the people.”

Considering President Barack Obama’s track record of nominating liberal justices Sonia Sotomayor and Elena Kagan, Democrats will be expecting much the same if there’s another vacancy regardless of whose seat becomes vacant. But since those 2009 and 2010 confirmations, the party has now lost more a dozen seats. And both the court — and the Senate — have become sharply more partisan. Now, the court is set to reconsider Democrats’ most substantial achievement in Obamacare, a challenge to the law’s subsidies that Republicans believe stands a real chance of being overturned.

Add it all up and there are very real Democratic worries that the first GOP-controlled Senate during Obama’s presidency could spell major difficulties not only for confirmation of a new liberal justice, but for Democrats’ hard-fought legislative legacies of the last six years.

In interviews with 10 Senate Democrats across the party’s ideological spectrum, senators declined to second-guess Ginsburg’s decision to stay on into the GOP majority.

But it’s not just the taboo of second-guessing a sitting justice that keeps the Democrats from playing Monday morning quarterback — there’s also nothing they can do. So rather than criticize the close liberal ally, Democrats praise her recent shows of vitality, her physical fitness, full court load and quick returns to work.

Democrats say they have no reason to believe that Ginsburg can’t help carry the court’s block of four liberal justices into 2017, the next year that Democrats could possibly control both the Senate and the White House. If Ginsburg had any doubts about her ability to do that, they argue, her seat would already be vacant.

“Justice Ginsburg has never missed a day of work, including this. She has shown no signs of not wanting to serve, and so she is certainly entitled to serve. So, there is no vacancy,” said Sen. Dianne Feinstein (D-Calif.), a senior member of the Judiciary Committee.

“I’m always concerned, because there could be a vacancy any time. I have no information that there is about to be a vacancy,” said Sen. Richard Blumenthal (D-Conn.), another panel member. Ginsburg is “very hardy, energetic and talented.”

Given the increasing partisanship in the Senate over Obama’s nominees, it’s almost assured that whoever President Barack Obama would pick must have to clear a filibuster and garner 60 votes to win confirmation — rather than the majority threshold for every other type of nominee, a quirk of Senate Democrats’ rules change. That means that any vacancy will need more than a dozen Republicans’ support, not to mention sufficient backing to get out of committee in the first place.

Incoming Senate Judiciary Chairman Chuck Grassley (R-Iowa) declined to tip his hand on how his committee might handle the massive task of Supreme Court nomination — or even whether Republicans are preparing for that possibility.

“I’m not going to think about that until we have one. I think they will be handled the same way we’ve handled Supreme Court nominees in the past,” he said.

Of course, there’s quite a few ways Supreme Court nominees have been handled in the past. Harriet Miers’s nomination was withdrawn in 2005 after bipartisan angst built up over her qualifications, with nine other Supreme Court nominees ultimately winning confirmation since Ronald Reagan’s nominations of Douglas Ginsburg and Robert Bork were scuttled in 1987. Ginsburg herself was confirmed 96-3 during Bill Clinton’s presidency — but no one believes that a nomination to replace her or any other justice would go so smoothly these days.

Republicans “obviously want to control the court when they consider all the political decisions it has made,” said Sen. Sheldon Whitehouse (D-R.I.). “It would be a full on blood bath, I would expect.”

If there is a vacancy while the GOP controls the Senate, Democrats say, the trick will be for Democratic senators to work with the White House to identify someone that transcends the political trench warfare of the Senate’s rancorous confirmation process by marrying liberal credentials with an apolitical reputation.

“November just made it tougher. So if there would be a vacancy, the president would have to be extremely adroit in who he would send up,” said Sen. Tim Kaine (D-Va.). “I know that they would be creative in terms of trying to send up somebody who the president felt comfortable with but could garner the maximum support.”

Still McCain said the Supreme Court nomination process has gotten steadily more acrimonious during his 30 years on Capitol Hill, though he said he will seek to steer his party toward a confirmation process elevated from the daily tug of partisan politics. But Republicans still mention Clarence Thomas’s difficult confirmation when asked about the Supreme Court — a reminder that old grudges die hard.

Given Democrats’ large majorities during the Sotomayor and Kagan confirmations, it’s hard to say what a Supreme Court vacancy looks like in a Senate where filibusters and procedural warfare seem to tighten by the day and with Republicans holding at least a six-seat advantage.

Still, Democrats are hopeful: Both that Ginsburg will remain as vital as they say she is, and that Republicans would enter a confirmation battle with an open mind. After all, they’ve got little other choice.

“Supreme Court vacancies receive such attention that it would be extremely difficult to prevent an up-or-down vote on a Supreme Court nominee,” said Maryland Democratic Sen. Ben Cardin. “President Obama … I know he’ll be very careful in who he selects. So it would be very challenging to vote against a nominee just because of politics.”